What do you need to know?
On 31 October 2018, the Queensland government introduced the Human Rights Bill 2018 (Qld) (Bill) to parliament. The Bill aims to ensure that respect for human rights is embedded in the culture of the Queensland public sector and that public functions are exercised in a principled way that is compatible with human rights. The Bill is significant as it proposes a series of new obligations on public entities and legislators in Queensland.
What is the background?
The Bill follows on from a recommendation from the Legal Affairs and Community Safety Committee inquiry in 2016, in which Government members recommended that the Queensland Parliament move to legislate a Human Rights Act in Queensland. The inquiry received over 480 submissions, the majority of which were supportive of the introduction of a Human Rights Act in Queensland.
Which rights are protected?
The Bill seeks to enshrine a greater number of rights than equivalent legislation in other Australian states and territories (such as Victoria and the Australian Capital Territory). Specifically, the Bill proposes to protect 23 distinct human rights, being:
- Recognition and equality before the law
- Right to life
- Protection from torture and cruel, inhuman or degrading treatment
- Freedom from forced work
- Freedom of movement
- Freedom of thought, conscience, religion and belief
- Freedom of expression
- Peaceful assembly and freedom of association
- Taking part in public life
- Property rights
- Privacy and reputation
- Protection of families and children
- Cultural rights—generally
- Cultural rights—Aboriginal people and Torres Strait Islanders
- Right to liberty and security of person
- Humane treatment when deprived of liberty
- Fair hearing
- Rights in criminal proceedings
- Children in the criminal process
- Right not to be tried or punished more than once
- Retrospective criminal laws
- Right to education
- Right to health services
The protection of separate cultural rights for Aboriginal people and Torres Strait Islanders, and the right to health services, are unique to the Queensland legislation in an Australian context.
Who will be responsible?
The Queensland Anti-discrimination Commission will be rebranded as the Queensland Human Rights Commission under the proposed legislation, and given powers to consider certain complaints relating to human rights. The Supreme Court of Queensland will also have certain powers of review under the proposed regime.
How does the Bill work to protect human rights?
The Bill, if made into law, would impose a number of obligations on public entities, including legislators. Public entities are broadly defined and include government entities, public servants, the Queensland Police Service, local governments, and entities whose functions are, or include, functions of a public nature when they are performing the functions for the State or a public entity (whether under contract or otherwise). This means that private companies undertaking work for Queensland government entities may be regulated by the regime where they are performing functions of the State.
Specifically, the Bill provides the following applications for the proposed human rights regime in Queensland:
- All legislation proposed by the Queensland parliament must be accompanied by a statement of compatibility with human rights. The statement of compatibility must indicate whether the proposed legislation is compatible with human rights and, if not, the extent to which it is incompatible. Parliament may expressly declare that an Act has effect despite incompatibility with human rights – though this power is intended to only be used in exceptional circumstances.
- All laws must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights. Where a law cannot be interpreted in a way that is entirely consistent with human rights, the Bill provides that the law should be interpreted in the way that is the most compatible with human rights.
- The Bill makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a human right relevant to a decision.
These obligations will likely require public entities to establish policies for considering human rights when making decisions – and processes for ensuring that such consideration is documented in the event of a challenge under the dispute processes set out in the Bill.
What remedies are available?
The Bill establishes two avenues for grievances arising from the proposed regime – escalation to the Queensland Human Rights Commission, or to the Supreme Court of Queensland.
The Queensland Human Rights Commission will be able to receive complaints from aggrieved persons about public entities acting in a way that is not consistent with human rights. There is a detailed dispute resolution regime set out in the Bill that is proposed to apply to this process.
Additionally, if an aggrieved person considers that a public entity has act in a way that is unlawful as it has made a decision in a way that is not compatible with human rights, there will be a right of judicial review of that decision. An aggrieved person could seek a declaration of unlawfulness from the Supreme Court of Queensland.
The Supreme Court of Queensland will have the power to make a declaration of incompatibility stating that the court is of the opinion that a statutory provision cannot be interpreted in a way that is compatible with human rights. Such a declaration would not affect the validity of the relevant statutory provision or create a cause of action. A declaration of incompatibility would, however, compel the relevant Minister to prepare a written response and table it in Parliament.
The Bill has been referred to the Legal Affairs and Community Safety Committee for consideration. It is anticipated that it will be passed through Parliament in early 2019.
This article first appeared on the Norton Rose Fulbright website and has been reproduced with permission.